The Mukasey Ultimatum

The New Republic, October 27. 2009

At his recent Judiciary Committee confirmation hearing, would-be attorney general Michael Mukasey sounded at times positively Alberto Gonzales-like. Pressed on whether waterboarding, an interrogation technique in which interrogators strap the subject to a plank and pour water over his face to create the sensation of drowning, counts as torture, he hemmed and hawed: “I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.” Committee Democrats, understandably frustrated, followed up with a letter pronouncing themselves “deeply troubled by your refusal to state unequivocally that waterboarding is illegal” and offering “an opportunity to clarify your views on this important question.”

Their question is more than reasonable, and they are wholly within their rights to expect answers to it. Waterboarding, which is reportedly meant to induce a fear of imminent death, seems “specifically intended to inflict severe … mental pain or suffering”–which is to say that it seems at least perilously close to torture under the language of federal law. Moreover, it was among the techniques about which Congress was concerned when it passed the McCain Amendment in 2005 banning “cruel, degrading, and inhuman” interrogations–which the administration interprets, under Supreme Court case law, to include any tactic that “shocks the conscience.” Congress is entitled to understand how on earth the current administration managed to read these laws to make waterboarding acceptable–and to determine, as much as possible, whether the new attorney general agrees or not with that understanding.

But Mukasey’s reticence on this issue should not necessarily doom his prospects as attorney general. Liberal legal blogger extraordinaire Marty Lederman, writing in praise of the Democratic follow-up letter, asks: “If Mukasey now does not publicly agree that waterboarding is unlawful, could (principled) Dems who signed a letter such as this really vote for him?” But there are several good reasons for Democrats to let Mukasey get away with dodging the question–as they likely will.

To begin with, Mukasey was undoubtedly correct in refusing to give a simple answer. The reason, as he suggested at his hearing, is that the Justice Department has taken a position on these questions, and CIA personnel have relied on that position in good faith to do some pretty ugly things. The Justice Department’s Office of Legal Counsel has reportedly issued opinions validating coercive techniques, waterboarding among them; to say now that these opinions are wrong is to announce that the CIA officers who followed their guidance violated criminal statutes. That’s a grave step for an attorney general under any circumstances. But for Mukasey to repudiate classified opinions that he has not even seen would be far worse. To censure them now would be to declare criminal conduct by government employees solely based on what he has read in the paper. It may be obvious to senators–and to me, for that matter–that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

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